These cases present the question whether the doctrine of res ipsa loquitur applies to an action to recover damages for wrongful death of a passenger killed in the wreck of a transport airplane operated as a common carrier.

The doctrine of res ipsa loquitur lies in the field of substantive law rather than in the realm of procedure, Lachman v. Pennsylvania Greyhound Lines, 4 Cir., 160 F.2d 496. Consequently the question is one of local law and not of Federal law, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487. In determining what law governs this matter, this Court must commence by ascertaining the local rules of Conflict of Laws governing this subject, Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. Under the law of the District of Columbia, the law of the State where the injury resulting in death is sustained governs the right to recover damages for wrongful death, Weaver v. Baltimore & O.R. Co., 21 D.C. 499, 501; Ormsby v. Chase, 290, U.S. 387, 54 S. Ct. 211, 78 L. Ed. 378, 92 A.L.R. 1499; Betts v. Southern R. Co., 71 F.2d 787, 789; Restatement, Conflict of Laws, Section 377. In view of the fact that, in this instance, the fatal accident occurred in West Virginia, the law of that State is determinative of the question whether the doctrine of res ipsa loquitur is applicable in the instant cases. Apparently this precise point has not been determined in any reported decisions in West Virginia and the point is one of novel impression. It, therefore, becomes the duty of this court to ascertain the law of West Virginia on this point as a matter of principle and with the aid of such persuasive authorities as are available in the absence of any controlling ruling.

A classic summary of this doctrine is found in Sweeney v. Erving, 228 U.S. 233, 240, 22 S. Ct. 416, 418, 57 L. Ed. 815: 'In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.'

Mr. Chief Justice Groner in Capital Transit Co. v. Jackson, 80 U.S.App.D.C. 162, 164, 149 F.2d 838, 841, 161 A.L.R. 1110, recently gave the following lucid explanation: 'Some of the decisions hold that a 'presumption' arises, some a 'permissible inference,' others a 'prima facie case,' and in still others that the burden of proof is shifted to the defendant. The confusion is added to by the continued use of the words res ipsa loquitur to describe all of these rules without distinguishing among them. But whatever the result of the application of the rule in other jurisdictions, in the District of Columbia the rule is that, when res ipsa is applicable, it permits an inference of negligence and thus establishes a prima facie case, or, in other words, makes a case to be decided by a jury. But it does not shift the burden of the proof. When all the evidence is in, the question for the jury still is whether the preponderance is with the plaintiff.'

West Virginia has adopted substantially the same view of the doctrine of res ipsa loquitur. Monteleone v. Co-operative Transit Co., 128 W.Va. 340, 344, 36 S.E.2d 475, 477, contains the following statement: 'There is a great deal of confusion in the decided cases touching the doctrine of res ipsa loquitur and there are two very well defined viewpoints. One is that the doctrine shifts the burden of proof and is not a rule of evidence but of substantive law; the other that it affects only the question of going forward with the evidence, and that if the defendant makes available to the court all of the information in its control touching the source of injury and places upon the stand the persons acting for it in charge of the instrumentality that caused the injury, then, if with its own evidence added, the plaintiff has been unable to prove a breach of duty his case fails. There is no doubt but that West Virginia has long been committed to the latter application of the doctrine.'

The problem presented for solution in the cases at bar illustrates the capacity of the common law to grow and its adaptability to the requirements of new conditions. Its general theories and principles may be molded and rendered applicable to novel and unexpected situations. 'The principle . . . does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.'
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The bases of the doctrine of res ipsa loquitur are two fold: first, if the mechanism involved in the accident is within the sole and entire control of the defendant, the latter is in a better position than the plaintiff to adduce an explanation as to how and why the accident happened; second, if the accident is of an unusual kind, and would not ordinarily occur without failure on the part of some human agency, it is reasonable to assume in the absence of a satisfactory explanation that it was due to some negligence on the part of the defendant. These principles are as applicable to airplane crashes as they are to railroad wrecks. That airplane crashes may occur as a result of the action of the elements, or without any carelessness or deficiencies on the part of any human being, is no doubt true. This is also probably the case in connection with railroad wrecks. It must be borne in mind that the doctrine of res ipsa loquitur does not result in a conclusive presumption of negligence nor does it even compel such an inference. It merely permits it and calls upon the defendant for an explanation. The concept of res ipsa loquitur does not impose on the defendant a liability that would not otherwise exist. If it be the fact that the defendant was not guilty of negligence, he will be free of liability. The doctrine does not even life the burden of proof from the plaintiff and place it on the defendant to offer an account of the cause of the accident. In the absence of a satisfactory explanation exculpating him, the jury may, but is not compelled to, make a finding that the disaster was caused by the defendant's negligence.

It is argued that the novelty of air navigation should preclude the application of the rule of res ipsa loguitur to airplane accidents in view of the fact that they may be due to mysterious and unknown causes. This doctrine was, however, applied to railroads as early as 1844 in Carpue v. London & Brighton Ry. Co., 5 0q.b. 747, when this mode of transportation was still in its infancy.

In England the same view has been expressed and applied. Thus in Fosbroke-Hobbes v. Airwork, Ltd., 1 All.E.R. 108 (1937); 1 Avi. 663, is found the following illuminating discussion: 'It was argued that I ought not to apply this doctrine to an aeroplane, a comparatively new means of locomotion, and one necessarily exposed to the many risks which must be encountered in flying through the air, but I cannot see that this is any reason for excluding it. Large numbers of aeroplanes are daily engaged in carrying mails and passengers all over the world, and, as is well known, they arrive and depart with the regularity of express trains. They have indeed become a common-place method of travel, supplementing, though not superseding, rail and sea transport. Railways were just as great an innovation when they took the place of the stage coach, yet the courts found no difficulty in applying to them by the year 1844 the same doctrine that had formerly been applied to stage coaches.'

The foregoing considerations inescapably lead to the conclusion that the doctrine of res ipsa loquitur should be deemed applicable to accidents involving airplanes operating as common carriers.

Motions to strike are denied.

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